Disturbing Trends in Adjudication in Queensland
The following is a reprint of an article written by Bob Gaussen, principal at Adjudicate Today, NSW.
Recent articles have highlighted the decline in the number of adjudication decisions in Queensland.
Figures quoted come from published statistics of the Queensland Adjudication Registrar. They demonstrate a reduction in numbers from 754 decisions ten years ago to 268 decisions for financial year 2017/18.
Figures for last financial year 2018/19 are not available as the Registrar, despite a requirement to publish monthly statistics, has not published since December 2018.
However, adjudication decisions are published online. Study of each decision reveals a disturbing picture.
Queensland, unlike other States, now requires adjudicators to determine whether they have jurisdiction to decide matters which are the subject of a disputed payment claim. When an adjudicator has no jurisdiction to proceed due to invalidity of the payment claim, the Queensland Registrar counts that as a decision.
That leads to a misleading statistic. When counting decisions, we should not be including as decisions those applications where the adjudicator is unable to decide the issues in dispute between the parties.
Studying the published decisions from the Registrar’s website, in financial year 2017/18 the number of decisions on the disputed issues drops from 268 to 202 as on 66 occasions adjudicators could not proceed to decide the issues in dispute. Therefore, the actual reduction is from 754 decisions ten years ago (before adjudicators were required to determine jurisdiction) to 202 decisions.
For the first half of last financial year (July – December 2018), the Registrar reports 119 decisions. Analysis reveals 37 of these are for no decision. Thus, in the last published period of six months, there are only 82 decisions.
These figures demonstrate a loss of confidence in the Queensland Security of Payment regime.
This loss of confidence is for two reasons:
Unlike all other Eastern States (where adjudication numbers are increasing), parties are denied the free procedural advice provided by authorised nominating authorities (ANAs); and The huge fall over rate in Queensland. The fall over rate is the ratio of applications made to decisions that decide the disputed issues between the parties. For the first half of last financial year (July – December 2018), the Registrar reports 240 applications of which only 82 went to decision of the issues in dispute. This represents a fall over rate of 293%. This should be contrasted with a fall over rate in other States of 35%.